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Toll v. Sills Cummis & Gross, P.C.

Superior Court of New Jersey, Appellate Division

July 2, 2013

JAMES D. TOLL, Plaintiff-Appellant,
SILLS CUMMIS & GROSS, P.C., Defendant-Respondent.


Submitted March 5, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8741-07.

McMoran, O'Connor & Bramley, P.C., attorneys for appellant (Bruce P. McMoran, of counsel and on the briefs; Michael F. O'Connor, on the briefs).

Epstein Becker & Green, P.C., attorneys for respondent (Carmine A. Iannaccone, of counsel and on the briefs; Michael D. Thompson, on the briefs).

Before Judges Fisher, Alvarez and St. John.


Plaintiff James D. Toll appeals from orders of the Law Division granting: (1) summary judgment to defendant, Sills Cummis & Gross, P.C., on plaintiff's age discrimination claim and defendant's counterclaim for conversion of a referral fee; and (2) a directed verdict to defendant on his claim of retaliation. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.


The record discloses the following facts and procedural history.

Plaintiff, a fifty-two year old attorney, had been employed by defendant for twenty-two years when his employment was terminated. In early 2006, defendant's executive committee desired to reduce the number of the firm's members.[1] A three person committee was established to identify members for termination or reduction in status. After several meetings, in which the committee reviewed numerous members for potential termination, they identified plaintiff, as well as six other persons, whose ages were sixty-one, sixty-two, sixty-three, fifty-five, fifty, and forty-four, respectively.

The committee, after consulting with various members on the management and executive committees, informally evaluated each of the members they had identified for possible termination in the categories of "client related skills, future of practice area, legal skills (ability, efficiency, ability to juggle), marketing to new clients, judgment, and standing in the bar."

In the category of "client related skills, " plaintiff's rating was "C, mixed at best." According to a committee member, that evaluation was made before the firm lost a substantial client as a result of the client's impression of plaintiff's inadequate representation. In the category of future of practice area, plaintiff was rated at "F-" because the firm was "looking to get out of" two of his practice areas, personal injury defense, outside of products liability, and personal injury work. With respect to plaintiff's legal skills, the committee looked at his entire career, including his profitability. He was evaluated at "below average" in that category because he was not sought out by originating partners to do work on matters. It was also noted that plaintiff was not present in the office after 6:00 p.m., which plaintiff contested. Regarding the category of marketing to new clients, plaintiff was rated an "F" because he was not in a practice area that the firm sought to attract. The committee was unable to rate plaintiff in the judgment category. Plaintiff received a "D-" in the category of standing in the bar, because he did not have any high reputational value in the New Jersey legal community.

After conducting these evaluations, the committee concluded that four members, including plaintiff, should be terminated, two members should be demoted to senior counsel, and one member should retain status. Sometime in the spring of 2006, the findings and recommendations were presented to the executive committee. The executive and management committees ultimately agreed with the findings and recommendations, and three members were immediately terminated, two members were demoted, and one member retained status. On September 28, 2006, defendant's deputy managing partner informed plaintiff that the firm would no longer engage in personal injury work and plaintiff should begin looking for a new position. Plaintiff contended he was never given a date certain. Following this, plaintiff's bonus was reduced but his salary remained the same. Defendant also permitted younger associates to assume some of plaintiff's responsibilities. In December 2006, plaintiff's counsel wrote defendant claiming the firm had discriminated against plaintiff because of his age. In September 2007, defendant formally terminated plaintiff.

Additional facts underlie defendant's counterclaim. In 2004, plaintiff represented a client in a wrongful death lawsuit on a contingent fee basis. Defendant directed plaintiff to find substitute counsel for the client because the firm no longer wanted to remain engaged in the matter. Substitute counsel agreed to take the case and pay a referral fee. By e-mail dated May 8, 2007, defendant asked plaintiff about the referral fee, to which plaintiff replied, "[t]he firm will be getting the 1/3 referral fee from . . . [substitute counsel] assuming there is a recovery."

In 2008, after his termination, plaintiff received a check payable to him, in the amount of $92, 497.65, representing the referral fee. Plaintiff retained the monies. Defendant first became aware that the referral fee case settled in October 2009. It then sought return of the monies, but plaintiff refused.

In 2008, plaintiff filed a complaint claiming age discrimination. The motion judge[2] granted summary judgment on this claim to the defendant. The judge found that although plaintiff satisfied his prima facie burden of proof, defendant articulated a legitimate, non-discriminatory reason for discharge, and plaintiff did not show that age was a determinative factor in the termination decision. On reconsideration, the judge clarified that he dismissed the age discrimination claim because plaintiff failed to proffer sufficient evidence of pretext.

Defendant filed a counterclaim for conversion of the referral fee. The motion judge found that plaintiff "committed conversion by [intentionally] exercising control over the referral fee." The judge further explained that plaintiff had not set forth "any ...

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